Brewster Kahle of the Internet Archive has a barn-burner of an op-ed in today’s Washington Post. He makes the argument connecting the class action and the monopoly problems about as succinctly as its possible to make it:

It may seem puzzling that a civil lawsuit could yield monopolies. Traditionally, class-action lawsuits cluster a group of people who have suffered the same kind of harm as a result of alleged wrongful conduct. And under this settlement, authors who come forward to claim ownership in books scanned by Google would receive $60 per title.

But the settlement would also create a class that includes millions of people who will never come forward. For the majority of books — considered “orphan” works — no one will claim ownership. The author may have died; the publisher might have gone out of business or doesn’t respond to inquiries; the original contract has disappeared.

Google would get an explicit, perpetual license to scan and sell access to these in-copyright but out-of-print orphans, which make up an estimated 50 to 70 percent of books published after 1923. No other provider of digital books would enjoy the same legal protection. The settlement also creates a Book Rights Registry that, in conjunction with Google, would set prices for all commercial terms associated with digital books.

His preferred course of action: reject the settlement and create a public scanning project:

There are alternatives. Separate from the Google effort, hundreds of libraries, publishers and technology firms are already digitizing books, with the goal of creating an open, freely accessible system for people to discover, borrow, purchase and read millions of titles.

It’s not that expensive. For the cost of 60 miles of highway, we can have a 10 million-book digital library available to a generation that is growing up reading on-screen. Our job is to put the best works of humankind within reach of that generation. Through a simple Web search, a student researching the life of John F. Kennedy should be able to find books from many libraries, and many booksellers — and not be limited to one private library whose titles are available for a fee, controlled by a corporation that can dictate what we are allowed to read.

I agree with his diagnosis but disagree with his prescription, in that I think the settlement is salvageable. The op-ed, having put its finger on the orphan works issue, then whistles its way past the problem of what we’ll do about orphan works without some kind of legal framework to immunize scanners and distributors. The settlement, whatever its concentration-of-power flaws, does genuinely help bring this lost generation of books back into the public sphere.

James, I forget if you’ve mentioned this already, but couldn’t DOJ follow the model that Andrew Cuomo has pursued with some success in New York: file some sort of suit against Google (e.g., an antitrust complaint), and then settle that lawsuit only after extracting certain concessions from Google? DOJ could even do so within the context of the current (private) settlement talks.

Could an alternative be - a government/public controlled register, similar to Australians ‘Public Lending Right register’, so as to facilitate the digitisation of orphan books in Public libraries for not for profit e-lending.

Everyone seems to be “whistling their way past” the issue of defining what constitutes an “orphan work”—apart from the declarations of entities, not just Google but the Open Book Alliance, that an “orphan work” is absolutely anything they declare it to be, if they want to distribute it without permission and without any legal repercussions.

The copyrights to all the so-called orphan works will eventually expire and enter the public domain. Meanwhile, anyone wanting to reprint these books must endure the burden of locating the copyright holders—not that Google or the Open Book Alliance is bothering to try. However, the public can fully enjoy this so-called lost generation of books right now by borrowing print copies from libraries and buying copies on the used book market. Of course, they’re largely not bothering to do so. Not because most of these books are unavailable, but because they are not desirable unless scanned en masse so entities such as Google and the Open Book Alliance can sell ads next to hundreds of thousands of them.